Construction, Forestry, Maritime, Mining and Energy Union v Foundation Civil & Mining Pty Ltd

[2022] FWC 1999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

Foundation Civil & Mining Pty Ltd

(B2022/1142)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 JULY 2022

Proposed protected action ballot of employees of Foundation Civil & Mining Pty Ltd.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Foundation Civil & Mining Pty Ltd (the Respondent).

On 27 July 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms India Baxter of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR744268.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) lodged an application with the Fair Work Commission seeking a protected action ballot order in relation to employees of Foundation Civil & Mining Pty Ltd (Foundation Civil). This application was made under section 437 of the Fair Work Act 2009, which allows unions to apply for such an order when they have been genuinely attempting to reach an enterprise agreement with their employer and have met specific notification requirements. The dispute centred around the terms and conditions of employment that the CFMMU sought to negotiate on behalf of its members employed by Foundation Civil.

The central legal issue before the Deputy President was whether the CFMMU had fulfilled the necessary preconditions to apply for a protected action ballot order. This involved determining whether the union had genuinely been attempting to reach agreement with Foundation Civil and if the requisite notification period had been observed as stipulated in section 443(1) of the Act. The Deputy President needed to assess the declaration provided by Ms. India Baxter of the CFMMU, which outlined the union's bargaining efforts and the timeline of those efforts, to ascertain if the union had genuinely tried to reach an agreement and if the notification period had been adequately met.

The Deputy President found that the union had indeed been genuinely attempting to reach an agreement and that the notification period had been correctly observed. This conclusion was based on the evidence presented, which included the declaration from Ms. Baxter. As a result, the Deputy President was satisfied that the requirements for the protected action ballot order had been met, and the application was approved. This decision was made without the need for a hearing, as Foundation Civil did not object to the application.

An order was issued in PR744268, allowing the CFMMU to proceed with the protected action ballot as per the application. This outcome facilitates the union's efforts to negotiate better terms and conditions for its members at Foundation Civil, providing a legal framework for potential protected industrial action if negotiations fail.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established